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1 https://wordpress.org/?v=5.3.3&lxb_maple_bar_source=lxb_maple_bar_sourceThis Week at the FCC for Broadcasters: May 23, 2020 to May 29, 2020https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-for-broadcasters-may-23-2020-to-may-29-2020/
https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-for-broadcasters-may-23-2020-to-may-29-2020/#respondSun, 31 May 2020 14:35:17 +0000https://www.broadcastlawblog.com/?p=7307Continue Reading…]]>Here are some of the regulatory and legal actions of the last week—and some obligations for the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

The comment cycle was set in the FCC’s annual regulatory fee proceeding. On or before June 12, the Commission wants to hear from interested parties about the fees that it proposes to impose on the companies that it regulates – including broadcasters. The FCC proposes to complete the implementation of its change to computing fees for television stations based on population served rather than on the market in which they operate, a move it began last year (see our Broadcast Law Blog article here on the FCC decision last year to initiate the change in the way TV fees are allocated). The FCC also asks for ideas about how the Commission can extend fee relief to stations suffering COVID-19-related financial hardship. Reply comments are due on or before June 29. (Notice of Proposed Rulemaking)

FCC Chairman Ajit Pai and Chris Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, wrote to the nation’s governors asking them to, among other things, declare radio and TV broadcasters as essential to COVID-19 response efforts and to afford broadcasters all appropriate resources and access. (News Release)

In a good reminder to broadcasters that transactions involving the sale or transfer of control of a broadcast station must be authorized in advance by the FCC, the Media Bureau entered into a consent decree with two companies that sold an FM station and FM translator without getting approval from the Commission. The parties mistakenly believed filing license renewal applications that reflected the assignment was sufficient approval. The consent decree includes an $8,000 penalty. (Consent Decree). See this article on past cases where the FCC has warned that even transactions among related companies that change the legal form of ownership of a broadcast station without changing the ultimate control need prior FCC approval.

The Commission granted approval to Cumulus Media, Inc. to exceed the Commission’s twenty-five percent foreign ownership threshold. The Commission will allow Cumulus to have up to 100 percent aggregate foreign investment in the company, although additional approvals will be needed if any previously unnamed foreign entity acquires 5% or more of the company or if any foreign entity desires to acquire control. (Declaratory Ruling). This decision shows the process that the FCC must go through to approve foreign ownership above the 25% threshold and the analysis needed to issue such approvals. See our articles here and here about the evolving FCC policy in this area.

President Trump signed an executive order that seeks to, among other things, address online censorship and rollback certain protections afforded to online platforms, which include social media sites like Twitter, Facebook, Instagram, and YouTube, but which also protect any site that hosts content created by users – which could include the Internet platforms of many broadcasters. Under federal law, Section 230 of the Communications Decency Act, these online platforms generally enjoy legal immunity for what users post on their platforms. The President directed the Department of Commerce to ask the FCC to open a rulemaking to review this immunity and asked the FTC to review whether platforms were adhering to their terms of use when commenting on or limiting third-party content. Other government entities, including state attorneys general and the Department of Justice, were also asked to review online platforms. For his part, FCC Chairman Ajit Pai said “This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce.” (Executive Order). Watch for an article on the Broadcast Law Blog this coming week on implications of this order for broadcasters and other media companies.

Anyone looking to hand deliver documents to the FCC needs to learn a new address, and it is not, as you might expect, the address of the FCC’s future headquarters. Deliveries by hand must now be brought to 9050 Junction Drive, Annapolis Junction, MD 20701. The address change is to enhance security screening and is part of winding down operations at the current 12th Street headquarters. (Order)

Looking at the week ahead, here are some dates broadcasters need to be considering:

On or before Monday, June 1, all radio and TV stations in Arizona, DC, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming that have five or more full-time employees in their station employment unit (i.e., commonly owned stations serving the same area that share at least one employee) must upload to their online public file, and post a link to that report on the homepage of their station’s website, an Equal Employment Opportunity (EEO) report documenting their hiring from June 1, 2019 to May 31, 2020. (EEO Rules and Policies)

The stations filing for license renewal by June 1 have an additional EEO requirement. Full-power radio stations in Michigan and Ohio and full-power TV, Class A TV, and LPTV stations in DC, Maryland, Virginia, and West Virginia must file with the FCC a Form 396, the Broadcast EEO Program Report. As a reminder, the license renewal application cross-references the file number of the EEO report, so the EEO report must be filed first. Form 396 is completed in and submitted through the FCC’s Licensing and Management System.

For other regulatory dates of importance to broadcasters coming up in the month of June, see our summary of those dates which we published last week.

]]>https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-for-broadcasters-may-23-2020-to-may-29-2020/feed/0June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Descriptionhttps://www.broadcastlawblog.com/2020/05/articles/june-2020-regulatory-dates-for-broadcasters-license-renewals-eeo-reports-broadcast-internet-consideration-and-comments-on-significant-viewing-dts-white-spaces-regulatory-fees-and-video-descrip/
https://www.broadcastlawblog.com/2020/05/articles/june-2020-regulatory-dates-for-broadcasters-license-renewals-eeo-reports-broadcast-internet-consideration-and-comments-on-significant-viewing-dts-white-spaces-regulatory-fees-and-video-descrip/#respondThu, 28 May 2020 15:54:56 +0000https://www.broadcastlawblog.com/?p=7305Continue Reading…]]>With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits. As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations. By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline. See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications. On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.

All radio and TV stations in Arizona, DC, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming that have five or more full-time employees in their station employment unit (i.e., commonly owned stations serving the same area that share at least one employee) must upload to their online public file, and post a link to that report on the homepage of their station’s website, an Equal Employment Opportunity (EEO) report documenting their hiring from June 1, 2019 to May 31, 2020. Additionally, the full-power radio and TV stations, Class A TV, and LPTV stations that are filing for license renewal by June 1 must also file with the FCC a Form 396, the Broadcast EEO Program Report. As a reminder, the license renewal application cross-references the file number of the EEO report, so the EEO report must be filed first.

The next set of license renewals will be filed by August 3 (as the 1st is on a Saturday). On or before that date, full-power AM, FM, LPFM, and FM translator stations in Illinois and Wisconsin and full-power TV, Class A, TV translator, and LPTV stations in North Carolina and South Carolina, will file their license renewal applications. Until recently, stations filing renewals would have had to begin airing pre-filing announcements on two months before their filing deadline – thus stations with an August 3 filing date would have had to start those announcements on June 1. But that obligation has been abolished. This requirement was temporarily waived in April and subsequently eliminated in May as part of the FCC’s broadcast local public notice proceeding, which we wrote about here. Stations must still, as noted above, air post-filing announcements. Note that the new rules on local public notice will change the timing and content of post-filing announcements. But, until the new rules become effective, stations should continue following the current post-filing announcement requirements.

The FCC will hold its Open Meeting on June 9 and there is one item in particular that will interest TV stations that have adopted or plan to adopt the ATSC 3.0 (Next Gen TV) standard. Acknowledging that the surplus spectrum unlocked by 3.0 transmission is often not used to its full potential, the Commission will consider an item that, if adopted, should ease TV stations’ worries about teaming with other stations in their market to offer so-called “Broadcast Internet” services. This ruling would clarify that stations that partner to lease their spectrum for IP-based data delivery are not subject to the Commission’s attribution and ownership rules (the FCC envisions one scenario where a non-broadcaster leases spectrum from a consortium of broadcasters in one or more markets to create a local, regional, or national data delivery footprint). Also up for consideration is a Notice of Proposed Rulemaking that seeks comment generally on other ways the Commission can change its rules to promote Broadcast Internet services and, more specifically, on how broadcasters might use Broadcast Internet services and the rule changes needed to make those ideas reality. We took a deeper look at Broadcast Internet and the FCC’s proposals in our article here.

Notwithstanding the virus’s disruption of much of daily life, the FCC is still moving forward with many proposed rule changes and accepting comments in ongoing proceedings—and June has six dates to watch. First, reply comments in the FCC’s TV White Spaces proceeding are due June 2. That proceeding looks to potentially increase the coverage of unlicensed “white spaces devices” offering wireless services in unused portions of the television band. See our article here for a summary of the FCC proposals.

Comments are due by June 12 in the FCC’s Distributed Transmission System (DTS) proceeding. The Notice of Proposed Rulemaking seeks input on technical changes to the DTS rules that could give TV broadcasters more flexibility as they deploy the ATSC 3.0 standard. We wrote here about some of the specific questions being asked in the NPRM. Interested parties can submit comments in MB docket number 20-74.

On or before June 12, comments are due in the FCC’s annual regulatory fee proceeding. The Commission is seeking comment on its proposed fees for all of its regulated entities including broadcasters. It also asks for ideas for relief the FCC can extend to licensees that are suffering COVID-19-related financial hardship. We wrote briefly here about the questions asked in the NPRM. Reply comments are due on or before June 29.

Reply comments are due by June 15 in the FCC’s Significant Viewing proceeding. As we wrote about here, the Notice of Proposed Rulemaking looks at updating the methodology for determining whether a station is “significantly viewed” in a community outside of its local market, and thus may be treated as a local station in that community for certain broadcast carriage purposes. You can read the comments that were submitted in the first round of commenting and submit replies here.

Finally, on June 22, comments are due in the FCC’s video description proceeding (for those unfamiliar, video description refers to the insertion in TV programming of spoken narration of what is happening on the screen to aid blind or visually impaired persons). This proceeding seeks comment on expanding the video description rules to require more stations to provide described programming. Under the current rules, ABC, CBS, Fox, and NBC stations in the top 60 TV markets have to deliver 50 hours of video-described programming per quarter during prime time or children’s programming and an additional 37.5 hours of video-described programming per quarter between 6 a.m. and midnight. The FCC is looking to expand these requirements to television markets 61 through 100 starting January 1, 2021, followed by an additional 10 TV markets each year for the next four years. See our summary of the FCC’s proposals, here. Comments can be submitted in MB docket number 11-43.

Stay tuned to the blog throughout the month for highlights of what else is happening in the world of broadcast law and regulation. And, as always, be sure to talk to your own counsel and advisors about these issues and about any other dates that might be of importance to your operations.

]]>https://www.broadcastlawblog.com/2020/05/articles/june-2020-regulatory-dates-for-broadcasters-license-renewals-eeo-reports-broadcast-internet-consideration-and-comments-on-significant-viewing-dts-white-spaces-regulatory-fees-and-video-descrip/feed/0Looking at the Comments on FM “Zonecasting” – What’s Next for This Proposal?https://www.broadcastlawblog.com/2020/05/articles/looking-at-the-comments-on-fm-zonecasting-whats-next-for-this-proposal/
https://www.broadcastlawblog.com/2020/05/articles/looking-at-the-comments-on-fm-zonecasting-whats-next-for-this-proposal/#respondMon, 11 May 2020 15:42:42 +0000https://www.broadcastlawblog.com/?p=7283Continue Reading…]]>Comments on the proposal of GeoBroadcast Solutions to allow FM boosters to originate limited amounts of programming different from that carried on their primary stations were due to be filed by this past Monday. We wrote about the GeoBroadcast proposal for “zonecasting” here. The comments as filed at the FCC fell principally into three categories. GeoBroadcast Solutions and its supporters argued that the FCC should move forward with the limited rule changes that it seeks, changing the FM booster rules from requiring 100% duplication of the primary station to one which only requires substantial duplication of the main station – thus allowing for limited inserts of localized content including localized news, advertising and emergency information. A second set of comments asked whether the technology had really moved forward sufficiently to warrant a notice of proposed rulemaking now – particularly as the system had not yet been fully tested for digital broadcast operations (commonly referred to as “HD Radio”). Finally, there were proposals looking to expand the scope of the proceeding beyond GeoBroadcast’s limited technical proposal, to allow for other systems to provide the service and even to expand the proposal to also allow FM translators to originate programming. Let’s look at each of these sets of comments.

Those supporting the GeoBroadcast proposal covered both the technology and business/operational aspects of the proposal. Comments by GeoBroadcast’s engineer and the GatesAir, Inc., which developed the MaxxCasting technology for boosters to minimize interference between the boosters and their primary station, argued that the technology already works for analog broadcasts and was promising for HD Radio operations. Support for the business case came from advocates for minority organizations (arguing that the technology would allow better targeting of these audiences), media brokers (arguing that the value of stations would increase), ad buyers (looking at the targeting prospects of the technology) and emergency communications experts (looking at the ability to target emergency information).

Another group of broadcasters submitted comments not only favoring the zonecasting proposal but looking to significantly expand it. These comments argue that the FCC should not only approve origination on boosters, but it should also allow FM translators that rebroadcast AM stations to originate local programming. The proposal not only suggests that translators be allowed to originate a minimal amount of programming as proposed by GeoBroadcast, but that they be able to originate as much as 40 hours per week. This would allow translators to not only rebroadcast the short commercials, news or emergency information, but they could also originate local programming like different high school football games being broadcast at the same time in different parts of the service area of an AM station. The proposal does not stop there – but suggests that the contour in which these translators can be located be extended to the 45 dBu contour – as used as the outer limit of protected service from FM stations when assessing interference from new translator applications (see our article here on the adoption of that contour for translator interference purposes). That is far beyond the current 60 dBu protected contour in which a translator (or booster) can currently be located.

Other comments were more circumspect in their support of the zonecasting proposal. The NAB indicates tentative support but expresses hope that the service will be extended to HD radio, as it is concerned about interference, especially to these digital operations. Xperi, which owns HD radio, expresses that same concern, looking for more testing of the zonecasting system and its impact on HD. Even more concerned is a coalition of large broadcaster groups who fear that the technology has been insufficiently tested to ensure that boosters which originate programming will not cause interference issues with the main station, driving away FM listeners. These broadcasters ask for additional testing before the FCC moves forward with any more formal proposal to approve the zonecasting system.

The FCC must now deal with this diversity of comments and determine whether to move forward with the GeoBroadcast proposal. The next step will be for the FCC to determine if it will issue a formal Notice of Proposed Rulemaking, posing specific questions about the system, as well as specific regulatory proposals that it could adopt, and soliciting additional comments as to whether the system should be approved. Alternatively, the FCC could decide that it does not yet have enough information to move forward. In some cases, that would mean that the proposal would simply sit at the FCC until there was wider support. In other cases (as the FCC did with the proposal for C4 FM stations), the FCC could issue a Notice of Inquiry asking more pointed questions about the zonecasting system but not specifically proposing to adopt it before those additional questions are answered. No matter how the FCC decides to move forward, there are significant regulatory hurdles that this proposal must clear before there is any final resolution as to whether broadcasters can start to more finely target their audience in the way that GeoBroadcast proposes.

]]>https://www.broadcastlawblog.com/2020/05/articles/looking-at-the-comments-on-fm-zonecasting-whats-next-for-this-proposal/feed/0This Week at the FCC: May 2, 2020 to May 8, 2020https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-2-2020-to-may-8-2020/
https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-2-2020-to-may-8-2020/#respondSun, 10 May 2020 03:49:57 +0000https://www.broadcastlawblog.com/?p=7280Continue Reading…]]>Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations. Here is this week’s list of significant actions:

The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies. Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off. As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver. (Order)(Broadcast Law Blog article)

Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations. (News Release)

The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters. It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)

The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications. This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).

The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates. The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).

The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule. If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term. (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).

The comment period closed this week in the FCC’s FM “zonecasting” proceeding. The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station. Under the current rules, FM boosters must retransmit 100% of the programming from their originating station. (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).

A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory. The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).

]]>https://www.broadcastlawblog.com/2020/05/articles/this-week-at-the-fcc-may-2-2020-to-may-8-2020/feed/0This Week at the FCC: April 18, 2020 to April 24, 2020https://www.broadcastlawblog.com/2020/04/articles/this-week-at-the-fcc-april-18-2020-to-april-24-2020/
https://www.broadcastlawblog.com/2020/04/articles/this-week-at-the-fcc-april-18-2020-to-april-24-2020/#respondSun, 26 Apr 2020 14:34:33 +0000https://www.broadcastlawblog.com/?p=7256Continue Reading…]]>Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times. There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred. So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues. You check out that webinar presented to broadcasters across the country, available by clicking on this link. And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :

The Commission held an Open Meeting on April 23 and before and during the meeting acted on three items of interest to broadcasters. The first item was a Report and Order on LPFM stations that expanded the permissible use of directional antennas, expanded the definition of minor change applications, and allowed LPFM stations to operate boosters. The Order deferred to a later proceeding a decision on changing the rules for interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (Report and Order – and for highlights of the issues in that Order see our Broadcast Law Blog). The second item was a Notice of Proposed Rulemaking that seeks comment on the possible expansion of television station Video Description obligations (Notice of Proposed Rulemaking). Finally, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking that opened use of the 6 GHz band to unlicensed wireless devices. This move could impact certain broadcast auxiliaries. (Note: The Report and Order and Further Notice of Proposed Rulemaking has not yet been released – News Release)

The FCC adopted a much-anticipated clarification of its Political File Order. In the Order, the Commission clarified that its Political File Order is limited to requests for the purchase of broadcast time by issue advertisers whose commercials communicate a message relating to any political matter of national importance, not to requests for the purchase of broadcast time by or on behalf of a legally qualified candidate for public office. Also clarified is the FCC’s intention to apply a standard of reasonableness and good faith decision-making to decisions made by broadcasters in: (1) determining whether, in context, a particular issue ad triggers any disclosure obligations; (2) identifying and disclosing in their online political files the candidates and political matters of national importance that are referenced in each issue ad; and (3) determining when the use of acronyms or other abbreviations in their online political files would be understandable to the general public reviewing the information about issue ads. (Order on Reconsideration) (Broadcast Law Blog)

The FCC released a Public Notice announcing the procedures for the 2020-23 television license renewal cycle. The Notice covers familiar territory like reminding licensees of their online public file, local public notice, and EEO report filing obligations. The Commission notes that Schedule 303-S largely remains the same as it has in the past but includes changes to the Children’s TV Programming and ownership questions. (Public Notice) (Broadcast Law Blog)

The Commission released the agenda for the May 13 Open Meeting, with two items for consideration that will interest broadcasters. The first is a media modernization item that proposes to modernize and simplify the written and on-air public notices broadcasters must provide on the filing of certain applications. (Second Report and Order) The second deals with 2020 regulatory fees. In the draft FCC action, the Commission would not adopt proposals by VHF licensees to reduce their regulatory fees to account for signal limitations and degradation. The Commission also seeks comment on its proposal to assess 2020 fees for full-power TV stations based on the population covered by the station’s contour and on the other regulatory fees it would collect later this year. Stations can find their proposed fee in Appendix G. (Report and Order and Notice of Proposed Rulemaking)

The Media Bureau announced an update to the commercial radio station license renewal form adding a question that asks stations to certify compliance with the Commission’s ownership rules in section 73.3555. This update discards an interim procedure put in place last year after the Third Circuit Court of Appeals rejected the FCC’s ownership rule changes. (Public Notice) (Broadcast Law Blog)

The chief of the FCC’s Public Safety and Homeland Security Bureau emailed EAS participants a reminder to secure their EAS devices, warning that these devices are vulnerable to hacking if not properly secured. The Notice refers all EAS Participants to review best practices for securing their EAS systems contained in the 2015 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Final Report, and in the 2014 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Initial Report.

]]>https://www.broadcastlawblog.com/2020/04/articles/this-week-at-the-fcc-april-18-2020-to-april-24-2020/feed/0FCC Asked to Consider “Zonecasting” for FM Stations – Initial Comments Due May 4https://www.broadcastlawblog.com/2020/04/articles/fcc-asked-to-consider-zonecasting-for-fm-stations-initial-comments-due-may-4/
https://www.broadcastlawblog.com/2020/04/articles/fcc-asked-to-consider-zonecasting-for-fm-stations-initial-comments-due-may-4/#respondMon, 13 Apr 2020 16:12:27 +0000https://www.broadcastlawblog.com/?p=7240Continue Reading…]]>In the last few weeks, both on the radio and TV side of the broadcasting house, significant actions have been taken to potentially expand the use of zoned broadcasting to allow broadcasters to better target their audience with programming and advertisements. For TV, that is the proposed increase in use of distributed transmission systems, about which we will write in another article. For radio, a petition for rulemaking has been filed by a company called GeoBroadcast Solutions, proposing to use FM boosters to be able to provide such targeted programming within an FM station’s service area. The FCC last week issued a public notice asking for initial comments on the proposal – and those comments are due by May 4.

The FM zonecasting petition calls for a change in Commission rules that currently require FM boosters to simulcast 100% of the programming from their primary station. The proposed change in the rules would instead say that FM boosters would have to substantially duplicate the programming of the primary station but would allow commercials, news reports or other short content to be dropped into the programming on a booster that would be different than that programming on the main station. The proposal suggests that this would allow more targeted advertising within a market as well as more targeted news and information (including emergency information) within the market.

FM boosters (unlike FM translators) operate on the same frequency as their primary station. They cannot extend the contour of the primary station. Since they operate on the same frequency as the main station, there is a concern that they can cause interference to that main signal. Thus, currently, boosters are used principally in areas of irregular terrain to fill in gaps in coverage in areas within the predicted service area of a station where the main signal of the station can’t penetrate because of terrain obstructions. In its petition, GeoBroadcast Solutions suggests that, through its technology, using directional antenna, slight offsets of the timing of the transmissions of the main station and booster and other techniques, the area of interference between the booster and the main station can be greatly reduced.

The FCC’s public notice asks whether the voluntary use of this transmission system should be allowed. The comments, which are due by May 4, are just an initial round of comments that will help the FCC decide whether to move forward in analyzing this proposal. If the FCC sees significant support, it would then have to propose specific rules for the service and advance them in a Notice of Proposed Rulemaking, which would itself be subject to additional comments and reply comments.

This may be a promising system for many broadcasters allowing them to take advantage of localized coverage for news and advertising. Perhaps one area of concern could come from suburban stations in local communities who could fear zoned advertising and programming competition from major market stations targeting these local communities. Whether these concerns come to light will be seen in the initial comments and, if the FCC decides to move forward, in any Notice of Proposed Rulemaking that follows.

]]>https://www.broadcastlawblog.com/2020/04/articles/fcc-asked-to-consider-zonecasting-for-fm-stations-initial-comments-due-may-4/feed/0FCC April Meeting to Consider LPFM and Video Captioning – Looking at the LPFM Proposed Order (Including Interference Protections for TV Channel 6)https://www.broadcastlawblog.com/2020/04/articles/fcc-april-meeting-to-consider-lpfm-and-video-captioning-looking-at-the-lpfm-proposed-order-including-interference-protections-for-tv-channel-6/
https://www.broadcastlawblog.com/2020/04/articles/fcc-april-meeting-to-consider-lpfm-and-video-captioning-looking-at-the-lpfm-proposed-order-including-interference-protections-for-tv-channel-6/#respondTue, 07 Apr 2020 15:06:15 +0000https://www.broadcastlawblog.com/?p=7236Continue Reading…]]>The FCC last week released its tentative agenda for its April 23 open meeting. For broadcasters, that meeting will include consideration of the adoption of a Notice of Proposed Rulemaking (draft NPRM here) looking to broaden obligations for the audio description of television programming (referred to as the Video Description proceeding) – which we will write about in more detail later. The agenda also includes a Report and Order modifying rules relating to Low Power FM stations, which also addresses the protection of TV channel 6 stations by FM stations (full-power or LPFM) operating in the portion of the FM band reserved for use by noncommercial stations. The FCC’s draft order in this proceeding is here. We initially wrote here about these FCC’s proposals when the Notice of Proposed Rulemaking in the proceeding was adopted last year. Today, we will look at how the FCC has tentatively decided to resolve some of the issues.

One of the most controversial issues was the proposal to allow LPFM stations to operate with a directional antenna. While some directional operations had been approved by waiver in the past, there was some fear that allowing these antennas more broadly could create the potential for more interference to full-power stations. As a directional antenna requires greater care in installation and maintenance to ensure that it works as designed, some feared that LPFM operators, usually community groups often without a broadcast background or substantial resources, would not be able to properly operate such facilities. The FCC has tentatively decided to allow use of directional antenna by LPFM stations. However, it will require LPFM stations installing such antennas to conduct proof of performance measurements to assure that the antenna is operating as designed. The cost of such antennas, the limited situations in which such antennas will be needed (principally when protecting translators and in border areas), and the additional cost of the proof of performance should, in the FCC’s opinion, help to limit their use to entities that can afford to maintain them properly.

Also, the FCC has tentatively decided to allow LPFM stations to operate FM boosters. As with any other FM station, the booster cannot extend the signal of the primary LPFM station. Boosters will be helpful principally in areas with irregular terrain that shields part of an LPFM’s service area from receiving the main station’s signal. As these stations operate on the same channel as the LPFM itself, if not properly shielded, they can create interference to the primary station. The FCC will allow any LPFM station to operate up to two boosters (or two translators) or one translator and one booster.

The definition of a minor change in the transmission facilities of an LPFM would be broadened if the FCC adopts the draft Order. Instead of limiting a minor change to moves of 5.6 kilometers, the FCC is now doubling that limitation – allowing moves of up to 11.2 kilometers or to any location where the present and proposed 60 dBu contour of the LPFM station would overlap. This change is important to LPFM advocates as it significantly increases the area in which a station can be moved without waiting for the infrequent filing windows for new stations and major changes. Minor changes can be filed at any time.

The FCC declined to allow LPFMs to increase maximum power from 100 to 250 watts. The FCC has previously rejected similar proposals and decided that there was no reason to change that decision now. The FCC felt that there would be too many potential interference issues, including issues that have already been raised by some full-power stations about LPFMs in “foothills” areas – where their height above average terrain is low and can put a vast signal over a metropolitan area. That can occur if the LPFM is in an area that is high relative to the metropolitan area in one direction, but the height of the proposed antenna above average terrain is lowered because there are mountains behind the transmitter site, thus lowering the average terrain height (which is computed on the average of the heights along 12 radials extending from the proposed transmitter site). A higher antenna can dramatically increase coverage over the lower metropolitan area far beyond what the FCC predicted when it adopted the required mileage separation requirements that apply to LPFM stations.

The one issue in the order with ramifications beyond LPFMs is the decision not to decide to lift all restrictions on the location of FM stations – full-power or low power – operating in the reserved portion of the FM band from locating too close to Channel 6 TV (or LPTV) stations. Prior to the digital television transition, as the FM band is adjacent to Channel 6 and the analog TV transmission system involved FM-like transmission of audio signals, there was the potential for interference between analog FM stations operating low on the FM band and analog TV stations on Channel 6. While the conversion to digital television has removed many of these issues, some TV operators argued that the potential for interference to digital signals has not been fully analyzed. They also pointed to the fact that certain LPTV stations may still be operating in analog until July 2021. Thus, the FCC declined to abolish the interference protections entirely at this point in time. However, the FCC will permit noncommercial operators in the reserved band (full power or LPFM) to seek a waiver of Channel 6 protection requirements if they can show that the proposed operations would not create interference to any nearby Channel 6 TV station. That showing would be made using the FM translator criteria in Section 74.1205(c) which establishes an interfering contour for the FM station depending on the frequency on which it operates and a protected Grade B contour for the Channel 6 TV station. Where those contours don’t overlap, an FM in the reserved band can be located.

The FCC proposes to make other changes regarding LPFM operations in this Order – so review the order to see how they may affect your operations and watch for action at the April 23 meeting to see if these draft rule changes are adopted.

]]>https://www.broadcastlawblog.com/2020/04/articles/fcc-april-meeting-to-consider-lpfm-and-video-captioning-looking-at-the-lpfm-proposed-order-including-interference-protections-for-tv-channel-6/feed/0PIRATE Act Passes Senate, and Now on to the President for Signature – Provides for Big Fines and Enforcement Sweeps in Big Marketshttps://www.broadcastlawblog.com/2020/01/articles/pirate-act-passes-senate-and-now-on-to-the-president-for-signature-provides-for-big-fines-and-enforcement-sweeps-in-big-markets/
https://www.broadcastlawblog.com/2020/01/articles/pirate-act-passes-senate-and-now-on-to-the-president-for-signature-provides-for-big-fines-and-enforcement-sweeps-in-big-markets/#respondFri, 10 Jan 2020 16:53:12 +0000https://www.broadcastlawblog.com/?p=7141Continue Reading…]]>The PIRATE Act, to crack down on pirate radio, passed the Senate this week after having passed in the House of Representatives last year. It now goes to the President for signature. We’ve written about this legislation several times before (see for instance, our articles here and here). In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.

The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000. Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.” This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here). In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine). The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts.

Under the bill, the FCC would also need to conduct an annual “enforcement sweep” of the top 5 radio markets based on the amount of reported pirate radio activity in the market, with follow-up monitoring 6 months after each sweep to assess whether the pirates have in fact ceased operations. These sweeps would need to be conducted without disrupting normal pirate radio enforcement activity in other markets. The bill requires all pirate radio enforcement activity to be cataloged and submitted in a report to Congress each year.

The bill would also prohibit the FCC from taking any action to preempt any state law that targets pirate radio, such as the laws in Florida, New Jersey, and New York which make such activity illegal under state law. The bill also directs the FCC to coordinate with the US Attorney’s Offices and the US Marshall’s office to collect fines and seize equipment – powers that already have been used by the FCC to act against pirate radio operators (see, for instance, our article here about the seizure of pirate radio equipment).

Bigger fines and quicker enforcement actions, plus calls for the closer monitoring of FCC action so that future FCC administrations cannot retreat from the commitment to enforcement shown by the current FCC, seem to bode well for broadcasters looking for protection against pirate radio operators. We’ll watch as these new penalties are rolled out when the Act becomes law.

]]>https://www.broadcastlawblog.com/2020/01/articles/pirate-act-passes-senate-and-now-on-to-the-president-for-signature-provides-for-big-fines-and-enforcement-sweeps-in-big-markets/feed/0University Pays $76,000 Fine to Settle Complaint About Underwriting Announcements on Noncommercial Station that Went Too Farhttps://www.broadcastlawblog.com/2020/01/articles/university-pays-76000-fine-to-settle-complaint-about-underwriting-announcements-on-noncommercial-station-that-went-too-far/
https://www.broadcastlawblog.com/2020/01/articles/university-pays-76000-fine-to-settle-complaint-about-underwriting-announcements-on-noncommercial-station-that-went-too-far/#respondWed, 08 Jan 2020 17:25:40 +0000https://www.broadcastlawblog.com/?p=7135Continue Reading…]]>Every noncommercial station, including LPFMs, that accepts underwriting announcements should be concerned about making sure that the announcements meet FCC guidelines and remain truly noncommercial. An FCC Order was released yesterday announcing a consent decree entered into between the University of Arkansas and the FCC’s Enforcement Bureau. The Order illustrates what can happen if noncommercial stations are not careful – as the University agreed to pay what is essentially a fine of $76,000 and to adopt a compliance plan that forces the University to carefully monitor underwriting announcements for the next five years, as well as engaging in programs to educate and monitor its staff to insure future compliance. The FCC Order announcing the consent decree should be carefully reviewed by all noncommercial broadcasters to see what can happen if they do not comply with the rules.

The FCC’s Order itself does not go into detail about the alleged instances of where the station exceeded what is permitted by the rules. But the Order does enumerate the policies that restrict underwriting in the following statement:

such announcements may not contain comparative or qualitative descriptions; price information (sales or discounts); calls to action; inducements to buy, sell, rent, or lease; or excessively detailed “menu listings” of services offered by the entity. Although the Commission has not adopted any quantitative guidelines on underwriting announcements, it has found that the longer the announcement, the more likely it is to contain material that is inconsistent with their “identification only” purpose.

While most noncommercial broadcasters are familiar with the obligations to avoid calls to action, qualitative claims, and price and discount information, some of the more subjective criteria listed in the Order may not be as familiar. The FCC notes that underwriting announcements, while they can generally mention the services provided by an underwriter, they should not have an excessively detailed list of those services. In addition, the announcements should not be of excessive length, as they are likely to sound more commercial – going beyond a mere identification of the sponsor. See our article here for another case where this issue arose.

The Order itself does not enumerate the problems with the announcements broadcast on the University’s stations. But in the public file of one of the stations, the initial complaint is available, and that provides more detail on the issues found to be problematic by the FCC. Announcements contained all sorts of potentially problematic information including:

Specifics on warranties available on lawn mowers and furniture – and details of models and brands

In an insurance ad, acting out risks that can be faced by consumers before saying that the insurance company can “help life go right” and in another saying that the agency has “great claim service”

In a car dealer ad, talking about how a car is “the most powerful muscle car ever” and promoting a special event – presumably a sale – at the dealership. In another, talking about how a car is “the most customizable vehicle on the planet.”

For a bank, saying that they provide “a better way to bank”

For a car repair shop, talking about how the owners “go above and beyond to ensure that their customer service comes first and foremost” and talking about how they want to help and can take care of repairs – sounding like calls to action.

This is just a sampling of the announcements that were included in the complaint. While we cannot say for certain that these were the phrases that the FCC found violated the FCC policies, we do note that the extensive list of these announcements that more than pushed the limits formed a pattern that certainly troubled the FCC. In most cases, underwriting announcements should sound kind of boring – just making a short announcement thanking the underwriter for its support and giving a very general description of who the underwriter is and what they do, with an address or phone number or website, but with no call to action suggesting that listeners actually use the company’s services or even use the contact information provided. In the cases discussed in the Order yesterday, the stations seemed to try to jazz up the underwriting – and when you do that, it can lead to trouble.

So be careful in your underwriting announcements on noncommercial stations. Keep your announcements simple and kind of boring. If nothing else, this Order shows that the FCC can be very concerned when presented with a situation that crosses the line.

Addendum – 1/8/2020, 3 PM – After this article was posted, one noncommercial broadcaster wrote me to take issue with my advice to keep underwriting announcements “kind of boring.” She suggested that a better way to phrase the advice is that underwriting spots should be informational, not promotional. No offense intended by my comment – and her advice is good – underwriting spots should provide a minimal amount of information to identify who an underwriter is and what they do, but they should not promote that underwriter’s business. It is a hard distinction, but one that has to be observed. Such spots may indeed seem boring to underwriters accustomed to flashier ads on commercial stations, but they need to understand that noncommercial stations are subject to restrictions that commercial broadcasters are not.

]]>https://www.broadcastlawblog.com/2020/01/articles/university-pays-76000-fine-to-settle-complaint-about-underwriting-announcements-on-noncommercial-station-that-went-too-far/feed/0FCC Adopts Changes to Rules for New Noncommercial FM and LPFM Stations – Changing Application Processing Procedures and Holding Periodshttps://www.broadcastlawblog.com/2019/12/articles/fcc-adopts-changes-to-rules-for-new-noncommercial-fm-and-lpfm-stations-changing-application-processing-procedures-and-holding-periods/
https://www.broadcastlawblog.com/2019/12/articles/fcc-adopts-changes-to-rules-for-new-noncommercial-fm-and-lpfm-stations-changing-application-processing-procedures-and-holding-periods/#respondTue, 17 Dec 2019 17:13:00 +0000https://www.broadcastlawblog.com/?p=7117Continue Reading…]]>Last week, the FCC adopted an order making numerous changes to its processes for selecting winning applicants among mutually-exclusive applicants for new noncommercial broadcast stations, including noncommercial, reserved band full power FM stations and LPFMs. Applicants are “mutually exclusive” when their technical proposals are in conflict – meaning that if one is granted it would create interference to the other so that the other cannot also be allowed to operate. The changes adopted by the FCC, which we wrote about when first proposed here, affect not only the process of applying for new noncommercial stations and the system for resolving conflicts, but also address the holding period for new stations once construction permits are granted, and the length of permits for LPFM stations.

In cases involving mutually exclusive applications for new noncommercial stations, the FCC uses a “points system” to determine which of the mutually-exclusive applicants should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding preferences on factors such as whether they have fewer interests in other broadcast facilities, whether they are local organizations, and whether they are part of state-wide networks.

The changes to the FCC process are described below.

The FCC eliminated the current requirement that NCE applicants include in their governing documents specific provisions obligating the applicant to maintain localism and diversity in order to receive points as “established local applicants” and for “diversity of ownership.” The current obligation requires that, in order to receive a “diversity credit” in their application, applicants need to have articles of incorporation or bylaws that specifically state that they cannot acquire new stations that would affect the credit they received in the FCC review of the applications. Localism must be maintained by provisions in organizational documents restricting the residence of board members. The FCC determined that including provisions in governing documents was unnecessary – the actual conduct of the applicant can be weighed by the FCC whether or not the company’s governing documents contain explicit restrictions.

The FCC will impose new transmitter site certification obligations on applicants for new stations – requiring applicants to certify on their application that they have received reasonable assurance of the availability of their proposed transmitter sites, and to provide a contact person for the entity that has provided such assurance. This decision merely clarifies an obligation that is already imposed on noncommercial applicants (see our articles here and here).

The FCC changed the NCE tie-breaker process by adding a new criterion favoring the grant of applications that were unsuccessful in receiving stations in prior FCC filing windows, if an applicant has no other broadcast interests. This criterion will be applied last, if all other tie-breaking criteria have not broken the points system tie.

It also changed the process for establishing mandatory time-sharing plans where ties in the comparative process remain after the points system was applied. Currently, full-power NCE station applicants who are tied in the FCC points system end up in a tie-breaker process (see, for instance, our article here that discusses the process). Where that process does not produce a clear winner, parties are often allowed to negotiate for years over the terms of a time-sharing agreement before the FCC intervenes to force a sharing arrangement. The FCC’s order sets a 90-day period in which such negotiations are to occur before mandatory time-sharing is imposed by the FCC. If there are more than three applicants, those that have the longest continuous period of existence will be included in the time share, with other applications dismissed.

The FCC modified the “holding period” during which NCE permittees must maintain the characteristics for which they received comparative credit. Specifically, if an applicant receives a “307(b) preference” for serving areas that have no noncommercial service or service from only one other noncommercial station, the applicant in the past has been forbidden from changing transmitter sites where it would lose service to some or all of the areas of proposed coverage for which it received a preference, even if that lost service is made up by service to new noncommercial white or grey areas. This restriction has prevented some successful noncommercial applications from constructing their new stations when proposed transmitter sites became unavailable and no alternative sites covering the exact same underserved areas were available. The Commission decided to do away with the prohibition, and will allow winning applicants to change sites as long as the underserved area in the new service area is as great as that from the site at which the permit was initially granted.

The FCC decided to reclassify as “minor” (1) all ownership changes to governmental applicants, provided that the change has little or no effect on such applicant’s mission, and (2) gradual board changes in non-stock and membership LPFM and NCE applicants. This eliminates issues that sometimes arise with long-pending applications when gradual Board changes result in a majority of the governing board of an applicant changing, which under FCC processing rules would result in dismissal of an application. The FCC has from time to time been forced to waive that rule (for instance in connection with the processing of applications from the 2003 FM translator window that ended up being dealt with in settlements more than a decade after they were filed). In the case of existing NCE stations, the FCC has taken the position that gradual changes in the Board of an applicant do not require a “long-form” transfer application that would otherwise apply to a major change in ownership (see our article here). The FCC decided to apply the same rules to the processing of applications for new stations.

The FCC eliminated certain tolling notification requirements and will toll NCE and LPFM broadcast construction deadlines without notification from the permittee, based on certain pleadings pending before, or actions taken by, the agency, including the need for international coordination (often an issue with applications in the Southwestern portion of the country where Mexican authorities are sometimes slow to clear proposals for new stations near the border that could impact current or planned Mexican stations). Currently, an applicant must ask the FCC for tolling to stop the clock on the time before the expiration of a construction permit. Inexperienced applicants acting without counsel often don’t realize that they need to request tolling, as do applicants who wrongly think that a tolling event may be able to be resolved quickly. By forgetting to ask for tolling, these permittees can lose out on potential time in which to construct their new stations. That will no longer be an issue with this change in the rules.

The FCC decided to extend LPFM construction permits from 18-months to a full three years, the same period that applies to other construction permits (a construction period which LPFM permittees can currently receive – but they have to timely request such extensions at the end of the initial 18-month construction period).

The FCC eliminated the current rules prohibiting the sale of unbuilt LPFM construction permits and requiring a 3-year holding period for newly licensed LPFM stations. The FCC instead will allow the assignment/transfer of LPFM permits and stations after an 18-month holding period as long as certain safeguards are met – including that there is no profit in the sale and as long as the new owner satisfies all FCC eligibility criteria (including offering the same comparative attributes as the original applicant if the CP was granted after a point-system analysis).

Obviously, there are many other details to these changes that should be carefully reviewed by any potential applicant for a new noncommercial station. These changes will become effective after the later of 60 days after publication in the Federal Register or after review under the Paperwork Reduction Act. But, once effective, these new rules should allow the FCC to once again open windows for applications for new noncommercial FM stations, something that has not occurred in many years.